Bowen v Willoughby City Council - [2000] NSWLEC 69

Reported Decision: 108 LGERA 149

Land and Environment Court

of New South Wales

CITATION: Bowen V Willoughby City Council [2000] NSWLEC 69

PARTIES:
APPLICANT:
Bowen
RESPONDENT:
Willoughby City Council

FILE NUMBER(S): 10064 of 2000

CORAM: Bignold J

KEY ISSUES: Question of Law :- Determination at preliminary stage whether proposed development prohibited development - whether LEP provisions concerning foreshore building line is a development standard.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 4; s 80 (2)

CASES CITED: Bowen v Minister for Urban Affairs (1996) 90 LGERA 368 Willoughby City Council v Bowen (1996) 92 LGERA 410· Woollahra Municipal Council v Carr (1985) 62 LGRA 263;
Vaniga Pty Ltd v South Sydney City Council (1989) 74 LGRA 86· North Sydney Council v P D Mayoh Pty Ltd (No 2) (1990) 71 LGRA 222;
Healesville Holdings Pty Ltd v Pittwater Council (1997) 97 LGERA 95;· Quinn O’Hanlon Architects Pty Ltd v Leichhardt Municipal Council (1989) 68 LGRA 114;· Napper v Shoalhaven Shire Council (unreported 12 February 1988 per Stein J) ;
Kruf v Warringah Shire Council (unreported 15 September 1988 per Holland J;
Frisoli v Leichhardt Council (1996) NSWLEC 157 15 June 1998) Bell v Shellharbour Municipal Council (1993) 78 LGERA 429 McKay v North Sydney Council (2000) NSWLEC 62;
Whitefield v Sutherland Shire Council (1989) 69 LGRA 48 (per Bignold J);
Currey v Sutherland Shire Council (30 November 1989, unreported per Hemmings J;
Patrial Holdings Pty Ltd v Sutherland Shire Council (unreported 29 March 1995 per Talbot J;
Pascale v Sutherland Shire Council (1995) 87 LGERA 30 per Bannon J;
Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94;
G T Brissett and Co v Gosford City Council (1985) 57 LGRA 164 Smith v Wollondilly Council (1995) 86 LGERA 437;
Rutland v Shoalhaven City Council (1997) 94LGERA 370

DATES OF HEARING: 03/04/00

DATE OF JUDGMENT:
04/06/2000

LEGAL REPRESENTATIVES:

APPLICANT:
Mr P Tomasetti, Barrister with Mr M Fraser, Barrister
SOLICITORS
Corrs Chambers Westgarth
RESPONDENT:
Mr J Robson, Barrister
SOLICITORS
Mallesons Stephen Jaques

JUDGMENT:

IN THE LAND AND Matter No . 10064 of 2000

ENVIRONMENT COURT OF Coram : Bignold J.

NEW SOUTH WALES 6 April 2000

D AND L BOWEN

Applicants

WILLOUGHBY CITY COUNCIL

Respondent

JUDGMENT ON PRELIMINARY QUESTIONS OF LAW

Bignold J:

A. INTRODUCTION

1. The Council has raised two preliminary questions of law in pending class 1 proceedings, being an appeal by the Applicant pursuant to the Environmental Planning and Assessment Act 1979 s 97 (EP&A Act), against the Council’s deemed refusal of development consent to a development application for the re-subdivision of land known as Nos 70-72 Sugarloaf Crescent, Castlecrag, being lots 301 to 305 (inclusive) DP 13613, (the development site) into the same number of lots but having different shapes and sizes to the existing five lots.

2. The questions of law are as follows:
1. Whether the proposed development is prohibited by Clause 16 of the Willoughby Local Environmental Plan, 1995 on the basis that the foreshore building…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] NSWLEC 69
Decision Date: 04/06/2000

CaseChat Overview and Summary

The case of Bowen v Willoughby City Council involves an appeal by the applicant against the council's refusal of development consent to re-subdivide land into different shaped lots. The key issues were whether the proposed development was prohibited by the local environmental plan and whether the development consent must be refused under the Environmental Planning and Assessment Act. The court found that the foreshore building line provision was a development standard that could be varied under the State Environmental Planning Policy. It also found that the development consent need not be refused as the proposed development would not contravene the Act or the local environmental plan. The court's reasoning was based on the proper construction of the relevant provisions and the context in which they operated. The court concluded that the proposed subdivision was not prohibited and that section 80(2) of the Act did not apply.

The court's determination of the preliminary questions of law has important implications for future development on the site. While the court found that the proposed subdivision was not prohibited, it noted that any future development of the three rear lots by dwelling-houses would require development consent and the successful invocation of the dispensational power under the Policy. The court's decision provides guidance on the interpretation of foreshore building line provisions and the application of the dispensational power under the Policy.

Orders